Bava Batra 209

בטל מדה בחבל הן חסר הן יתר דברי בן ננס:

THE [CONDITION] 'MEASURED BY THE ROPE CANCELS [THAT OF] 'MORE OR LESS; THESE ARE THE WORDS OF BEN NANNUS. <b><i>GEMARA</i></b>. R. Abba b. Memel said in the name of Rab: His colleagues are in disagreement<span class="x" onmousemove="('comment',' In their opinion it is doubtful which expression is to be regarded as valid, and the property or sum in dispute is, therefore, to be divided between the buyer and the seller. ');">¹</span> with Ben Nannus. What does this teach us? Surely we have learnt:<span class="x" onmousemove="('comment',' B.M. 102a. ');">²</span>

<big><strong>גמ׳</strong></big> אמר רבי אבא בר ממל אמר רב חולקין עליו חביריו על בן ננס מאי קא משמע לן תנינא מעשה בציפורי באחד ששכר מרחץ מחבירו בשנים עשר זהובים לשנה דינר זהב לחדש

It happened at Sepphoris that a person hired a bath house from another for twelve gold [<i>denarii</i>] per annum, one <i>denar</i> per month,<span class="x" onmousemove="('comment',' Both expressions were used at the time of hire, and the year was a leap-year, containing thirteen months. ');">³</span> and the matter<span class="x" onmousemove="('comment',' The dispute whether the intercalary month was to be included in the year, on account of the first expression, 'twelve gold [denarii] per annum', or whether it was not to be so included, on account of the second expression, 'one denar per month'. ');">⁴</span> was brought before R. Simeon b. Gamaliel and before R. Jose who said that [the rent for] the intercalary month must be divided.<span class="x" onmousemove="('comment',' Between the tenant and the owner of the house, i.e., the former pays only for half a month, since it is doubtful to whom the rent of the month belongs. Now, this clearly shows that the Rabbis do not agree with Ben Nannus, according to whom the second expression would have had to be considered as binding and a full month's hire would have had to be paid. ');">⁵</span>

ובא מעשה לפני רבן שמעון בן גמליאל ולפני רבי יוסי ואמרו יחלוקו את חדש העיבור

[What, then, does Rab come to teach us?] — If [the inference<span class="x" onmousemove="('comment',' That the Rabbis are in disagreement with Ben Nannus. ');">⁶</span> had come] from there, it might have been said that there<span class="x" onmousemove="('comment',' The case of the bath house. ');">⁷</span> only [do the Rabbis hold the opinion that the rent for the month is to be divided], because it might be assumed that [the owner] had changed<span class="x" onmousemove="('comment',' He first thought of letting the bath house for twelve denarii per annum, irrespective of whether the year was of twelve or thirteen months, and then changed his mind and demanded a denar for each month. ');">⁸</span>

אי מהתם הוה אמינא התם הוא דאיכא למימר מיהדר קא הדר ביה ואיכא למימר פרושי קא מפרש אבל הכא דודאי קא הדר ביה אימא לא קא משמע לן

his mind, and it might [also] be assumed that [with the second expression] he was merely explaining<span class="x" onmousemove="('comment',' He had no intention of expecting thirteen denarii for the leap year. By the expression, 'a denar per month', he only meant that he wished to be paid monthly instead of yearly, and also that he might cancel the arrangements at the end of every month without having to wait till the end of the year. ');">⁹</span> [the first];<span class="x" onmousemove="('comment',' And since the matter is in doubt, the Rabbis are of the opinion, and Ben Nannus himself might agree with them, that the sum disputed should be divided. ');">¹⁰</span> but here,<span class="x" onmousemove="('comment',' In our Mishnah. ');">¹¹</span>

אמר רב יהודה אמר שמואל זו דברי בן ננס אבל חכמים אומרים הלך אחר פחות שבלשונות

where [the seller] has clearly changed his mind,<span class="x" onmousemove="('comment',' Since the second expression is in direct contradiction to the first. ');">¹²</span> it might have been thought [that the Rabbis do] not [disagree with Ben Nannus]; hence [it was necessary for Rab] to teach us.<span class="x" onmousemove="('comment',' That even in this case the Rabbis disagree with Ben Nannus. ');">¹³</span> Rab Judah said in the name of Samuel: This<span class="x" onmousemove="('comment',' The law in our Mishnah. ');">¹⁴</span>

זו ולא סבירא ליה והא רב ושמואל דאמרי תרוייהו כור בשלשים אני מוכר לך יכול לחזור בו אפילו בסאה האחרונה

is the assertion of Ben Nannus, but the Sages say: The expression [which confers the] least<span class="x" onmousemove="('comment',' If the land sold is more than the stipulated area, the expression, 'measured by the rope', is adopted and the buyer must return the surplus. If the sold land, however, is less than the stipulated area, the expression, 'more or less', is adopted and the seller need not make good the difference. The seller, being the original possessor of the land, has always the advantage. ');">¹⁵</span> [advantage upon the buyer] is to be followed. 'This'<span class="x" onmousemove="('comment',' Viz., 'this is the assertion of Ben Nannus'. ');">¹⁶</span> [would imply that] he [Samuel himself] is not of the same opinion. but, surely, both Rab and Samuel said:<span class="x" onmousemove="('comment',' B.M. 102b, supra 86b; infra 106b. ');">¹⁷</span>

כור בשלשים סאה בסלע אני מוכר לך ראשון ראשון קנה אלא זו וסבירא ליה

[If a seller said.] 'I sell you a <i>kor</i> for thirty [selai'm]'. he may withdraw even at the last <i>se'ah</i>.<span class="x" onmousemove="('comment',' Because the terms of the offer implied that his desire was to sell the entire kor. So long, therefore, as the buyer has not acquired every fraction of the kor, the purchase cannot be regarded as having been legally completed. ');">¹⁸</span> [If. however, he said]. 'I sell you a <i>kor</i> for thirty, [each] <i>se'ah</i> for a <i>sela'</i>, [the buyer] acquires<span class="x" onmousemove="('comment',' By specifying the price per kor and per se'ah, the seller has intimated his consent to sell either the entire kor or any smaller quantity. ');">¹⁹</span> possession of every <i>se'ah</i> as It is measured out for him.<span class="x" onmousemove="('comment',' Lit. 'he acquires first first'. ');">²⁰</span>

ומי סבירא ליה והאמר שמואל בבא באמצע החדש עסקינן אבל בא בתחלת החדש כולו למשכיר בסוף החדש כולו לשוכר

[This, surely, shows that Samuel<span class="x" onmousemove="('comment',' Who stated, in the second case, that the buyer acquired possession of every se'ah as it was measured out, on account of the expression, 'each se'ah for a sela', which the seller used after he said, 'I sell you a kor for thirty'. ');">²¹</span> is of the same opinion as Ben Nannus!]<span class="x" onmousemove="('comment',' Who stated that the second expression cancels the first. ');">²²</span> — But, [it may be replied that] 'this', [may denote that Samuel] is of the same opinion.<span class="x" onmousemove="('comment',' As Ben Nannus. 'This etc', only indicates that the Rabbis disagree. ');">²³</span> Does [Samuel, however,] hold the same opinion? Surely Samuel said: [The Mishnah which states that the rent of the bath house for the intercalary month is to be divided] speaks [only of the case] where [the owner] comes<span class="x" onmousemove="('comment',' To the court. ');">²⁴</span> in the middle<span class="x" onmousemove="('comment',' Since it is doubtful which expression cancels which, the money and the bath house are to remain in the possession of their respective owners. For the first half of the month, therefore, which has already passed, no rent can be claimed from the tenant who is in possession of his money. For the second half, however, the owner may claim the rent, since the property is his, and he has the power to prevent the other from using it. ');">²⁵</span> of the month, but where he comes at the beginning of the month all [the rent of the month] belongs to the owner,<span class="x" onmousemove="('comment',' Because the property is in his possession. ');">²⁶</span> [and if he comes] at the end of the month, all [the rent of the month] belongs to the tenant.<span class="x" onmousemove="('comment',' Because his money is to remain with him, who holds it in possession. ');">²⁷</span> [Does not this prove that Samuel disagrees<span class="x" onmousemove="('comment',' Since he is doubtful as to whether the first, or second expression is to be regarded as binding. Cf. supra n. 6. ');">²⁸</span> with Ben Nannus?]